I will talk about elections this weekend and start Monday on Wall Street financial policy and where that has taken America. What I want everyone to take away from my posts is that

WE THE PEOPLE CAN REVERSE THIS GLOBAL CORPORATE CAPTURE VERY EASILY. WE SIMPLY NEED PEOPLE TO ENGAGE.

Two things would downsize global corporations right away and both are simply reinstating Rule of Law. First, we recover the trillions of dollars in corporate fraud and that will downsize global corporations and next we enforce Sherman Anti-Trust Laws rather than having pols and appointments who write excuses for mergers that have no basis in truth. If your pols are not shouting that these anti-trust laws are not being enforced

THEY WORK FOR GLOBAL CORPORATIONS---GET RID OF THEM. ALL MARYLAND POLS ARE GLOBAL CORPORATE POLS.

'Monopolies

Sectiontwo of theShermanActprohibitsmonopolies,attempts to monopolize, or conspiracies to monopolize. A monopoly is a form of marketstructurewhereonlyone or veryfewcompaniesdominatethetotalsales of a particularproduct or service.Economictheoriesshowthatmonopolistswillusetheirpower to restrictproduction of goodsandraiseprices.Thepublicsuffersunder a monopolisticmarketbecause it doesnothavethequantity of goods or thelowpricesthat a competitivemarketcouldoffer'.

In conclusion, I agree with Zepher Teachout: 'There are also reasons to think an antitrust policy focused on size and power makes good economic sense. Despite economic theorizing, bigger companies are not always more efficient companies. And even if they were, there are important societal efficiencies that go beyond whether individual companies operate cheaply or produce low-cost products. As Bert Foer of the American Antitrust Institute recently testified before Congress, we can choose to use competition policy to help prevent much of the systemic risk that has crippled our economy. By focusing more on size and concentration, we might be able to avoid collapse, unplanned nationalization, and bailouts'.

What are the Sherman Antitrust and Clayton Acts?

In the late 1800’s and early 1900’s, the U.S. government struggled with anti-competitive practices between businesses. Part of the concern was related to artificial pricing practices that harmed consumers. In response to these monopolies, cartels, and trusts, Congress passed two major pieces of legislation: The Sherman Antitrust Act and the Clayton Act. The Sherman Antitrust Act

Passed in 1890, the Sherman Antitrust Act was the first major legislation passed to address oppressive business practices associated with cartels and oppressive monopolies. The Sherman Antitrust Act is a federal law prohibiting any contract, trust, or conspiracy in restraint of interstate or foreign trade. Even though the title of the act refers to trusts, the Sherman Antitrust Act actually has a much broader scope. It provides that no person shall monopolize, attempt to monopolize or conspire with another to monopolize interstate or foreign trade or commerce, regardless of the type of business entity. Penalties for violating the act can range from civil to criminal penalties; an individual violating these laws may be jailed for up to three years and fined up to $350,000 per violation. Corporations may be fined up to $10 million per violation. Like most laws, the Sherman Antitrust Act has been expanded by court rulings and other legislative amendments since its passage. One such amendment came in the form of the Clayton Act. The Clayton Act

The purpose of the Clayton Act was to give more enforcement teeth to the Sherman Antitrust Act. Passed in 1914, the Clayton Act regulates general practices that may be detrimental to fair competition. Some of these general practices regulated by the Clayton Act are: price discrimination, exclusive dealing contracts, tying agreements, or requirement contracts; mergers and acquisitions; and interlocking directorates. The Clayton Act is enforced by the Federal Trade Commission (FTC) and the Department of Justice (DOJ). Many of the provisions of the Clayton Act set out how the FTC or DOJ can respond to violations. Other parts of the Clayton Act are designed to proactively prevent anti-trust issues. For example, before two companies can merge, they must notify the FTC and obtain approval prior to the merger. The Clayton Act also created exemptions from enforcement for certain organizations, the most significant being labor unions._______________________________________________Notice this article was written in the Reagan Administration as neo-liberalism was pushed mainstream. 'Trustbusting was a law created by farmers and small businesses inept and afraid of REAL BUSINESS MINDS say neo-liberals'. Indeed, at the time this article was written small farmers were being wiped out by BIG AG which became GLOBAL AG. Small businesses have been wiped out by BIG BOX and GLOBAL BIG BOX. We now have a captured, crony, criminal, unaccountable globally controlled economy with huge unemployment. So, ignoring Anti-Trust killed the US economy and US consumers....the very reason these laws were written. The idea that whoever is in power can pick and choose which Constitutional laws to enforce does not work IN A RULE OF LAW EQUAL PROTECTION NATION. They cannot simply decide to ignore anti-trust laws.

They know that and when the FTC and US Justice Department approves these mergers----they allow excuses for how the merger will be good for competition and the consumer THAT NO ONE BELIEVES. IT IS PROPAGANDA.

We can reverse all of these deals by simply reinstating Rule of Law. Public malfeasance and duplicity in wrongful contract does not hold up. Citizens should be outside every courtroom that might decide to rule against the American people on these issues. Global corporate pols have passed laws that send these cases to particular courts that then are staffed with judges that rule for corporations----

STOP ALLOWING THEM TO FIX OUR COURT SYSTEM AND DEMAND EQUAL PROTECTION AND RULE OF LAW!

This was written by an historian that also wrote a book on MADE IN THE USA. The failure to enforce Anti-Trust laws is the very reason we lost all of our industries.Trustbusting And The Images Of An Earlier Time

October 30, 1986|By Thomas V. DiBacco.

One of the most salutary, unheralded developments in recent years is that trustbusting has gone the way of the wind. To be sure, the Justice Department and the Federal Trade Commission sometimes put their feet in the way of proposed mergers, but the breaking up of large corporations is dead--except, of course, in those rare situations like the telephone industry where one company controls virtually everything.The Sherman Antitrust Act of 1890 was a bad law, conceived by farmers and uncompetitive small businesses who wanted to keep their world unchanged. They defied obvious realities, such as that the large corporation could effect economies of scale; small retailers even campaigned against extending the nation`s mail system in the early 20th Century because it would benefit Sears, Roebuck & Co. and its catalogue business.Even worse, the notions of the farmer and small retailer toward what was monopolistic drew upon emotion rather than sensible criteria. Take one example: The first multi-unit big business in the United States was Western Union, which grew in the wake of Samuel F.B. Morse`s pioneering work with the telegraph in 1844. By 1857 there were six telegraph companies controlling the industry, a few years later there were three and by 1866 there was only Western Union. To be sure, there were subsequent attempts to cut into Western Union`s monopolistic position, but all failed and no major antitrust movement arose.At the same time, the nation`s numerous railroads would come under rigorous legislative scrutiny. The first federal regulatory measure, the Interstate Commerce Act, came in 1887, three years before the Sherman Antitrust Act. And no industry was more the object of antitrust action in subsequent years than the railroads.Some analysts might suggest that the telegraph industry would raise little antitrust fervor because it created a vast communications system that made economic sense. The rails, on the other hand, were spread without much rhyme or reason throughout the land, creating enormous frustrations for users, such as farmers, who claimed their lines were too few and expensive.Maybe so, but one cannot disregard the emotional aspects of popular democracy in the late 19th Century. Just as today, Americans lived to some degree by images as well as reality.The image of the railroad--belching black smoke, deafening all other sounds, killing livestock and people before technology came to its rescue--was not likely to leave Americans emotionally neutral. In addition, the railroads looked massive, and so were readily associated with wealth.The vision of the telegraph industry, on the other hand, was that of a small, green-visored telegrapher tapping away in a small office. Unlike the railroad`s steel rails, a thin telegraph line could not conjure up much emotion. Even the recent break-up of AT&T was led by competitors rather than consumers.So let`s not mourn the end of trustbusting, a democratic notion whose history merits rich obscurity.Thomas V. DiBacco is a historian at the American University, Washington, D.C. His book, ``Made in the U.S.A.: The History of American Business,`` will be published by Harper & Row in March.____________________________________________

'The judge who wrote this opinion? Clarence Thomas, who took Judge Bork's place on the D.C. Circuit after Bork resigned. Thomas was joined in the opinion by Ruth Bader Ginsburg. Justice Sotomayor has used applied Bork reasoning in antitrust cases when she sat on the 2nd Circuit Court of Appeals. Elena Kagan has agreed that the Bork/Posner drive to incorporate neoliberal economics into antitrust law is necessary. During her confirmation hearings she said "it’s clear that antitrust law needs to take account of economic theory and economic understandings."

If the American media educated as to the issues that really matter------not whether a pol supports a higher minimum wage but are they neo-liberals who do not value anti-trust laws and thus embrace global corporations that break these anti-trust laws. That is what we would have known about Obama had any media outlet educated voters during the election. Obama is from The Chicago School of Law that is ground zero for neo-liberal economic policy and law. Take a look at the names in the article on anti-trust policy over the decades to see why people are nominated for court ====especially the Supreme Court====and you see how neo-liberalism and the dismantlement of anti-trust has been the goal of court appointments especially for Obama. Everyone says----even Republicans -----that we do not have free market economics----we have a crony economics and that happened when Sherman Anti-Trust laws were ignored.

When President Reagan nominated Judge Robert Bork to the Supreme Court in 1987, a political war began. Judge Bork had been a circuit judge on the District of Columbia Court of Appeals, which could be considered the second most powerful court in the nation. Although he was 60 years old, his influence over ultra-conservative jurisprudence became well known at the time of his nomination. He is one of the founding fathers, so to speak, of originalism. Democrats feared that his confirmation would shift the court so far to the right that it would be decades before balance could be restored. That political war was fought mainly over Judge Bork's stance on Roe vs. Wade, a war which President Reagan lost. Fierce opposition from Democrats like Ted Kennedy and some Republicans like Arlen Specter, led to Bork being rejected by the Senate 58 to 42. Anthony Kennedy was confirmed unanimously in his wake. Judge Bork resigned his seat on the DC Circuit the following year, leaving his colleague on the court Antonin Scalia to carry the battle flag for another time. But Judge Bork's influence didn't fade. He is still held in high esteem by conservative legal scholars over such matters as federalism, original intent, and other matters. But his influence over another body of law is deep, pervasive and is playing out across the nation in ways that will probably be felt for generations. After serving as Solicitor-General for Presidents Nixon and Ford from 1973 to 1977, Bork wrote a book that has had a lasting influence on the American economy. The Antitrust Paradox is Robert Bork's magnum opus. Along with Judge Robert Posner's seminal book Antitrust Law(1976), the influence that Bork's book has had on modern competition law in the conservative era is difficult to overstate. Both men are associated with the so-called Chicago School of neoliberal economics with its heavy emphasis on deregulated markets and the rational choice theory. Conservative legal minds like George Priest at Yale have praised his influence: Virtually all would agree that the Supreme Court, in its change of direction of antitrust law beginning in the late 1970s, drew principally from Judge Bork's book both for guidance and support of its new consumer welfare basis for antitrust doctrine. Liberal legal minds like Zephyr Teachout have written about Bork's influence as well: The spirit of antitrust has been eviscerated over decades by people like Robert Bork, who argued that antitrust had to be about "efficiency," as if efficiency was a nonpolitical, objective idea we all might measure. The D.C. Circuit Court of Appeals made Bork's doctrine official in a 1990 ruling in United States vs. Baker Hugues, which was a Clayton Antitrust Act enforcement action brought against Texas oil services company Baker Hughes. That influential ruling solidified the Chicago School's influence over antitrust enforcement by holding: The Supreme Court has adopted a totality-of-the-circumstances approach to the statute, weighing a variety of factors to determine the effects of particular transactions on competition. That the government can establish a prima facie case through evidence on only one factor, market concentration, does not negate the breadth of this analysis. Evidence of market concentration simply provides a convenient starting point for a broader inquiry into future competitiveness... The judge who wrote this opinion? Clarence Thomas, who took Judge Bork's place on the D.C. Circuit after Bork resigned. Thomas was joined in the opinion by Ruth Bader Ginsburg. Justice Sotomayor has used applied Bork reasoning in antitrust cases when she sat on the 2nd Circuit Court of Appeals. Elena Kagan has agreed that the Bork/Posner drive to incorporate neoliberal economics into antitrust law is necessary. During her confirmation hearings she said "it’s clear that antitrust law needs to take account of economic theory and economic understandings."While Justice John Paul Stevens is now considered a liberal champion, his primary, if lesser known, achievement on the court was initiating the embrace of Robert Bork's antitrust reasoning. When President Ford appointed Stevens to the Supreme Court in 1976, replacing traditional antitrust crusader William O. Douglas, he had already spent 20 years as an antitrust lawyer in Chicago. He taught antitrust law at the University of Chicago, where many other Chicago School neoliberals had ensconced themselves. He had been recruited there by the dean of the University of Chicago Law School, Ed Levi. After serving as a Nixon appointment to the 7th Circuit Appellate Court, he came highly recommended to President Ford by now Attorney-General Ed Levi and one other: Ford's Solicitor-General, Robert Bork. Ford appointed Stevens to the Court in 1976. Shortly thereafter, the Court began to take Chicago School ideas seriously, ultimately completely overturning antitrust doctrine in a movement that continues today. It is difficult to overstate Stevens' contribution. At the time of his appointment, the development of antitrust doctrine for four decades had consisted of the continuous expansion of per se rules prohibiting a wide range of practices: price-fixing and territorial restrictions; group boycotts; tying arrangements; predatory pricing; and resale price maintenance, among others. When John Paul Stevens' position on antitrust law is the left-most position, that is clearly indicative of a fundamental transformation of applied law. It happened quickly and the scope and effect of it has been breathtaking. And Robert Bork was right at the center of making it happen. While I don't want to get into heavy legal theory in this piece, I'll try to summarize quickly how Judge Bork's views changed the nature of enforcement of antitrust law and then move to the effects these changes are having on our economy. This is not a scholarly essay, but rather a polemic. My goal in describing how Judge Bork's views affect America is political, not exclusively legal in nature. In a 2007 paper published at Berkeley, antitrust scholars Johnathan Baker and Carl Shapiro get to the heart of the matter: The past forty years have witnessed a remarkable transformation in horizontal merger enforcement in the United States. With no change in the underlying statute, the Clayton Act, the weight given to market concentration by the federal courts and by the federal antitrust agencies has declined dramatically. Instead, increasing weight has been given to three arguments often made by merging firms in their defense: entry, expansion and efficiencies. The primary effect that Judge Bork had on antitrust enforcement is changing the standards by which antitrust actions are brought and decided. The basic point of Judge Bork's book is that the determinative factor of when and how an antitrust action should be decided should be economic rather than political. This is why the factors determining the use antitrust powers are decidedly financial in nature: Are there any barriers to entry? Is the consumer paying higher prices than usual? The fixation on consumer choices and prices, rather than market concentration and number of actors is the basic fundamental difference between modern and classical antitrust enforcement. This is why you have not and will not see a breakup of a major corporation in America today no matter how large or how concentrated its market share. In simpler terms, it does not matter if Wal-Mart is the sole source of food in your county as long there are a wide variety of products, the prices are low and in theory someone else could open up a store. No barrier to entry? Wide variety? Low prices? Monopoly approved. The original spirit of competition law in America, however, was decidedly political. Senator John Sherman of Sherman Antitrust Act fame, put it this way:If we will not endure a king as a political power we should not endure a king over the production, transportation, and sale of any of the necessaries of life. Justice William O. Douglas, writing in a 5-4 dissent in United States vs. Columbia Steel, however, may have put the purpose of antitrust law better than anyone else: "We have here the problem of bigness. Its lesson should by now have been burned into our memory by Brandeis. The Curse of Bigness shows how size can become a menace--both industrial and social. It can be an industrial menace because it creates gross inequalities against existing or putative competitors. It can be a social menace...In final analysis, size in steel is the measure of the power of a handful of men over our economy...The philosophy of the Sherman Act is that it should not exist...Industrial power should be decentralized. It should be scattered into many hands so that the fortunes of the people will not be dependent on the whim or caprice, the political prejudices, the emotional stability of a few self-appointed men...That is the philosophy and the command of the Sherman Act. It is founded on a theory of hostility to the concentration in private hands of power so great that only a government of the people should have it." That isn't an economic argument about consumer prices or market efficiency. Justice Douglas' argument for antitrust law was moral/political and it was not uncommon in his time. The 1950's and 1960's were what might be considered the "golden age" in classical antitrust enforcement. During that era, the use of the Sherman, Clayton, and Robinson-Patman Acts inter alia, were buttressed by the Celler-Kefauver Act. Those bills allowed the Federal Government to aggressively limit mergers, intervene in concentrated markets and combat anti-competitive behavior with the heavy hand of consent decree regulation. While the era did not bring about a great deal of break-ups, the corporations knew there was a tough cop on the beat. The problem with these laws, however, was that they were so broad that they left a great deal of discretion over enforcement to the executive branch and the courts. What would happen if both institutions developed a very different view of "bigness" than John Sherman or Justice Douglas?The "golden age" ended partly because of the tremendous legal influence of Robert Bork. His view of competition law fit neatly with the ascendancy of neoliberal economic thought. New antitrust enforcement guidelines were written by successive conservative administrations, whose members accepted Bork & Posner's thinking on the subject. Antitrust actions declined on both number and scope. The few actions that were brought were on the most obvious price-fixing and the like. Next, lawyers who accepted or in some cases enforced Bork's views were appointed to the district and appellate bench. Even nominally liberal judges appointed by Bill Clinton accepted the economic view of antitrust law and focused their concerns solely on consumer prices, product choice, etc. Mergers that in the 1950's would have completely rejected were approved.You need only look at the recent history of Bank of America since 1980 to see the effects of the lack of meaningful antitrust enforcement. In the first thirty years of the conservative era, Bank of America was allowed by antitrust enforcers to become so gargantuan, that it's failure posed a direct threat to the entire national economy. So huge in fact, that only the government could bail it out as it approached failure in 2008. While Judge Bork and his ilk would likely point to the benefits of "free checking" and "national ATM coverage" to the consumer, classical antitrust enforcers would look at the size and concentration of an entity that large and conclude it's massive size poses an excessive risk to society as a whole. Taxpayers now know costly "the problem of bigness" can be. When one considers the Citizens United ruling within the context of the dominant laissez-faire thinking among antitrust lawyers, it is easy to understand why large corporations have become the dominant institutions in American life. While there was a strong progressive and labor movement in the early part of the 20th Century to act as a counterweight to to the "robber barons" and "trusts," today no such movements exist. Perhaps progressives had thought the laws they worked so hard for, laws expressly designed to curb the size and concentration of corporate power, had largely made monitoring such things no longer imperative. But antitrust law was just a much a fundamental element of economic justice for the middle class as the labor movement. Even in cases where the trust busters failed, the people could see that there were people in government who were on their side, protecting the weak from the strong. But the conservatives planned ahead and planned well. Their victory was so complete, the Bush Administration didn't bother trying to enforce even the relatively lax Bork antitrust rules. And now, things are so far diverted from their original purpose, that Obama Administration's more robust antitrust action is firmly ensconced in Chicago School-style enforcement. Without traditional antitrust laws, or a labor movement, and unlimited corporate spending on elections, who or what will bring balance to the forces corporate power have over the people and their government? In conclusion, I agree with Zepher Teachout: There are also reasons to think an antitrust policy focused on size and power makes good economic sense. Despite economic theorizing, bigger companies are not always more efficient companies. And even if they were, there are important societal efficiencies that go beyond whether individual companies operate cheaply or produce low-cost products. As Bert Foer of the American Antitrust Institute recently testified before Congress, we can choose to use competition policy to help prevent much of the systemic risk that has crippled our economy. By focusing more on size and concentration, we might be able to avoid collapse, unplanned nationalization, and bailouts. To get there, we will either need a new body of competition law, or new teaching to undo the effects of the influential Robert Bork.

_____________________________________________

'This article explores the right of the people to be free from government granted monopolies or from what we would today call “Crony Capitalism.” As this article has shown, however, “the constitutional guarantee of liberty deserves more respect—a lot more.”

The research paper below has a great overview of the history of corporate monopoly in American history. Take a look---it is too long to post in entirety. What we know is that the US Constitution does not allow for the merging of US corporations to the extent that has happened and it occurs because we elect pols that ignore the Constitution. We are now watching as these global corporate pols manufacture reasons why global corporations are good for the public and economy -----

Northwestern University School of LawNorthwestern University School of Law Scholarly CommonsFaculty Working Papers2012Monopolies and the Constitution: A History of Crony Capitalism

Steven G. CalabresiNorthwestern University School of Law, s-calabresi@law.northwestern.eduLarissa Price

CONCLUSION

While the evils of state granted monopolies in England did not lead to an antimonopoly provision in the federal constitution, there is ample evidence that the right to be free from government monopolies is deeply rooted in this country’s history and tradition. The English fear of monopolies was a fear that Americans experienced under colonial rule, and it provided one of many justifications put forward for American independence. The Antifederalists spoke out against monopolies, and Federalists such as James Madison discussed the issue with Thomas Jefferson and George Mason during the debates on the Constitution. During the ratification of the federal Constitution, six states even requested the inclusion of an antimonopoly clause as an amendment to the Constitution. In addition, Congress is only given enumerated power to create monopolies in the Patent and copyright context, which implies that Congress lacks such power in other contexts. Moreover, the Privileges and Immunities Clause of Article IV may very well have recognized a constitutional right to be free from partial or discriminatory laws. Two states had antimonopoly provisions in their constitutions at the time of the founding, and many more states added antimonopoly provisions to their constitutions during the nineteenth century due to the Jacksonian concern about monopolies. This thread of Jacksonian thought was adopted by the Abolitionists and then by Reconstruction era Republicans who argued that the institution of slavery was itself a particularly perverse monopoly. The antimonopoly argument thus played an important role in the writing of the Fourteenth Amendment, which for the Radical Republicans was a ban on all systems of class-based legislation, of exclusive privileges, and of monopolies

All of this evidence—from Seventeenth Century England, from the colonial period, from the experience in the states, and from the framing of the Fourteenth Amendment--makes it clear that there is a strong antimonopoly tradition in U.S. constitutional law.The fact that inrecent times the federal courts have, for the most part, relegated cases involving economic regulations to limited “rational basis” review, however, has meant that until recently challenges to laws on antimonopoly grounds were unlikely to be successful. This may change now that the rational basis test has been employed to strike down classifications on the basis of sex, sexual orientation, and mental retardation, and now that the Takings Clause is experiencing a revival at the level of the U.S. Supreme Court. Despite the post New Deal rational basis mindset, this article has shown that state antimonopoly clauses in particular have proven to be important for striking down a number of economic regulations that grant special privileges to some at the expenseof others—licensing requirements, taxes designed to benefit preferred industries, monopolies to do business with the government, and price controls designed to benefit insiders. Antimonopoly clauses can also be used to strike down laws such as licensing requirements where the court finds that the laws grant special privilege absent any health and safety concerns. Challenges to state laws on antimonopoly grounds have been made recently, such as with a law governing Maryland horse massages and with the Texas horse floating cases discussed in Section III. The right to compete, and more fundamentally, the right to earn an honest living, is a basic right embodied in U.S. constitutional law. There is substantial evidence, from the English and colonial history, from debates on the federal constitution and its ratification, from the history of the Fourteenth Amendment, and from state constitutional law, to show that this is the case. However, the longstanding use of rational basis review has meant that the courts have too often surrendered to a legislative process that is dominated by well-entrenched interest groups seeking monopoly rents from the state. It means that fundamental economic liberties too often go unprotected by the courts. In short, the use of rational basis review has meant that “property is at the mercy of the pillagers.” As this article has shown, however, “the constitutional guarantee of liberty deserves more respect—a lot more.”

________________________________________Please take time to understand the intended effects of the Affordable Care Act. It seeks to consolidate and deregulate the health industry just as Clinton's policies to consolidate and deregulate the financial industry. What will become global health systems will control every aspect of health care. IT WILL BECOME A MONOPOLY.

The discussion below is a good start----it takes a business viewpoint but the arguments are laid out. The fact is that ACA sets the stage for violations of anti-trust and with global corporate pols in office all of this will be ignored.

IT MATTERS HAVING CLINTON GLOBAL CORPORATE POLS CONTROLLING THE PEOPLE'S DEMOCRATIC PARTY. NATIONAL LABOR AND JUSTICE LEADERS BACKING THESE NEO-LIBERALS ARE NOT WORKING FOR AMERICAN FAMILIES.

29 APR 20142:00 PM - 3:15 PM (UTC-05:00) Webinar In a widely reported decision, the FTC has successfully challenged the merger between St. Luke’s Hospital of Idaho and Salzer Medical Group, resulting in a federal court ruling that the merger would violate US antitrust law. DLA Piper is pleased to present a webinar discussing the ramifications of this significant case.Webinar PlaybackPresentation Slides AMONG THE TOPICS:

Overview of the intersection between the Affordable Care Act and the Sherman Antitrust Act

Summary of the St. Luke’s matter, including the district court’s rulings on market power, cost efficiencies and reimbursement rates

Cost efficiencies and related risks under the ACA that were at issue

What next? Antitrust and health care takeaways

SPEAKERS Carl Hittinger, Co-Chair, US Antitrust and Trade Regulation Group

____________________________________________WE THE PEOPLE can reverse this global corporate takeover very easily. Simply running and voting against Clinton neo-liberals will send them packing. Then we will have pols shouting for Rule of Law. Rule of Law itself will downsize US global corporations. First, there is the recovery of trillions in corporate fraud that will downsize these fraud- bloated corporations. Then there is the Anti-Trust laws in the Constitution that will break apart these unlawful mergers and acquisitions. Remember, it is the FED and Treasury that regulates banks and is allowing all the financial frauds and the President and a Clinton neo-liberal Senate appointed these agency heads. It is the FTC---Federal Trade Commission and the US Justice Department----Eric Holder ----that stops mergers that violate anti-trust. Again, these are Clinton neo-liberal appointments approved by a neo-liberal Senate who are ignoring anti-trust laws. WE ALL KNOW THESE MERGERS ARE CREATING MONOPOLIES.

'Still,theactwas a far-reachinglegislativedeparturefromthepredominantlaissez-fairephilosophy of theera'.If courts are stacked with Bork neo-liberal judges then a politician and citizens stand outside and shout that such rulings are not to be interpreted from the intent of this law. This is very boring but it gives the law as it is written. Think about Clinton allowing the telecommunications industry to merge after the ATT breakup. Flash forward to today and we have Verizon and Comcast each flooding advertising offering the same things for the same price. The cable competition is now disappearing with the last approved merger of Comcast.

HOW IS THIS COMPETITION AND HOW IS PAYING $200 A MONTH PRICE AFFORDABILITY. WALL STREET ANNOUNCED THAT WHEN CABLE GOES THOSE PRICES WILL GO TO $400 A MONTH.

Sherman Anti-Trust Act TheShermanAnti-TrustAct of 1890(15U.S.C.A. §§ 1 et seq.),thefirstandmostsignificant of theU.S.antitrustlaws, wassignedintolaw by PresidentBenjamin Harrisonand is namedafteritsprimarysupporter,OhioSenatorJohn Sherman.Theprevailingeconomictheorysupportingantitrustlaws in theUnitedStates is thatthepublic is bestserved by freecompetition in tradeandindustry.Whenbusinessesfairlycompetefortheconsumer'sdollar,thequality of productsandservicesincreaseswhilethepricesdecrease.However,manybusinesseswouldratherdictatetheprice,quantity,andquality of thegoodsthattheyproduce,withouthaving to competeforconsumers.Somebusinesseshavetried to eliminatecompetitionthroughillegalmeans,such as fixingpricesandassigningexclusiveterritories to differentcompetitorswithin an industry.Antitrustlawsseek to eliminatesuchillegalbehaviorandpromotefreeandfairmarketplacecompetition.﻿Untilthelate1800sthefederalgovernmentencouragedthegrowth of bigbusiness. By theend of thecentury,however,theemergence of powerfultrustsbegan to threatentheU.S.businessclimate.Trustswerecorporateholdingcompaniesthat, by 1888,hadconsolidated a verylargeshare of U.S.manufacturingandminingindustriesintonationwidemonopolies.ThetrustsfoundthatthroughconsolidationtheycouldchargeMonopolypricesandthusmakeexcessiveprofitsandlargefinancialgains.Access to greaterpoliticalpower at stateandnationallevelsled to furthereconomicbenefitsforthetrusts,such as tariffs or discriminatoryrailroadrates or rebates.Themostnotorious of thetrustsweretheSugarTrust,theWhiskyTrust,theCordageTrust,theBeefTrust,theTobaccoTrust,John D. Rockefeller'sOilTrust(StandardOil of NewJersey),and J. P. Morgan'sSteelTrust(U.S.SteelCorporation).﻿Consumers,workers,farmers,andothersuppliersweredirectlyhurtmonetarily as a result of themonopolizations.Evenmoreimportant,perhaps,wasthatthetrustsfannedintorenewedflame a traditionalU.S.fearandhatred of uncheckedpower,whetherpolitical or economic,andparticularly of monopoliesthatended or threatenedequalopportunityforallbusinesses.Thepublicdemandedlegislativeaction,whichpromptedCongress, in 1890, to passtheShermanAct.Theactwasfollowed by severalotherantitrustacts,includingtheClayton Act of 1914(15U.S.C.A. §§ 12 et seq.),theFederalTradeCommissionAct of 1914(15U.S.C.A. §§ 41 et seq.),andtheRobinson-Patman Act of 1936(15U.S.C.A. §§ 13a,13b,21a).All of theseactsattempt to prohibitanticompetitivepracticesandpreventunreasonableconcentrations of economicpowerthatstifle or weakencompetition.TheShermanActmadeagreements"inrestraint of trade"illegal. It alsomade it a crime to "monopolize, or attempt to monopolize … anypart of thetrade or commerce."Thepurpose of theactwas to maintaincompetition in business.However,enforcement of theactproved to be difficult.CongresshadenactedtheShermanActpursuant to itsconstitutionalpower to regulateinterstatecommerce,butthiswasonlythesecondtimethatCongressrelied on thatpower.BecauseCongresswassomewhatuncertain of thereach of itslegislativepower, it framedthelaw in broadcommon-lawconceptsthatlackeddetail.Forexample,suchkeyterms as monopolyandtrustwerenotdefined. In effect,Congresspassedtheproblem of enforcingthelaw to theExecutive Branch, and to thejudicialbranch, it gavetheresponsibility of interpretingthelaw.Still,theactwas a far-reachinglegislativedeparturefromthepredominantlaissez-fairephilosophy of theera.Initialenforcement of theShermanActwashalting,setback in part by thedecision of theSupremeCourt in UnitedStates v. E. C. KnightCo.,156U.S. 1, 15 S. Ct.249, 39 L. Ed.325(1895),thatmanufacturingwasnotinterstatecommerce.Thisproblemwassooncircumvented,andPresidentTheodore Rooseveltpromotedtheantitrustcause,callinghimself a "trustbuster." In 1914,CongressestablishedtheFederalTradeCommission(FTC) to formalizerulesforfairtradeand to investigateandcurtailunfairtradepractices. As a result, a number of majorcasesweresuccessfullybrought in thefirstdecade of thecentury,largelyterminatingtrustsandbasicallytransformingtheface of U.S.industrialorganization.Duringthe1920s,enforcementeffortsweremoremodest,andduringmuch of the1930s,thenationalrecoveryprogram of theNew Dealencouragedindustrialcollaborationratherthancompetition.Duringthelate1930s, an intensiveenforcement of antitrustlawswasundertaken.SinceWorld War II, antitrustenforcementhasbecomeincreasinglyinstitutionalized in theAntitrustDivision of theJustice Departmentand in theFederalTradeCommission,whichovertime,wasgrantedgreaterauthority by Congress.JusticeDepartmentenforcementactivitiesagainstcartelsareparticularlyvigorous,andcriminalsanctionsareincreasinglysought. In 1992,theJusticeDepartmentexpandeditsenforcementpolicy to coverforeigncompanyconductthatharmsU.S.exports.Restraint of Trade

Sectionone of theShermanActprovidesthat"[e]verycontract,combination in theform of trust or otherwise, or conspiracy, in restraint of trade or commerceamongtheseveralstates, or withforeignnations is herebydeclared to be illegal."Thebroadlanguage of thissectionhasbeenslowlydefinedandnarrowedthroughjudicialdecisions.Thecourtshaveinterpretedtheact to forbidonlyunreasonablerestraints of trade.TheSupremeCourtpromulgatedthisflexiblerule,calledtheRule of Reason, in StandardOilCo. of NewJersey v. UnitedStates,221U.S. 1, 31 S. Ct.502, 55 L. Ed.619(1911).UndertheRule of Reason,thecourtswilllook to a number of factors in decidingwhethertheparticularrestraint of tradeunreasonablyrestrictscompetition.Specifically,thecourtconsidersthemakeup of therelevantindustry,thedefendants'positionswithinthatindustry,theability of thedefendants'competitors to respond to thechallengedpractice,andthedefendants'purpose in adoptingtherestraint.Thisanalysisforcescourts to considerthepro-competitiveeffects of therestraint as well as itsanticompetitiveeffects.TheSupremeCourthasalsodeclaredcertaincategories of restraints to be illegalperse:thatis,theyareconclusivelypresumed to be unreasonableandthereforeillegal.Forthosetypes of restraints,thecourtdoesnothave to go anyfurther in itsanalysisthan to recognizethetype of restraint,andtheplaintiffdoesnothave to showanythingotherthanthattherestraintoccurred.Restraints of tradecan be classified as horizontal or vertical. A horizontalagreement is oneinvolvingdirectcompetitors at thesamelevel in a particularindustry,and a verticalagreementinvolvesparticipantswhoarenotdirectcompetitorsbecausetheyare at differentlevels.Thus, a horizontalagreementcan be amongmanufacturers or retailers or wholesalers,but it doesnotinvolveparticipantsfromacrossthedifferentgroups. A verticalagreementinvolvesparticipantsfromone or more of thegroups—forexample, a manufacturer, a wholesaler,and a retailer.Thesedistinctionsbecomedifficult to make in certainfactsituations,buttheycan be significant in determiningwhether to apply a per se rule of illegality or theRule of Reason.Forexample,horizontalmarketallocationsareper se illegal,butverticalmarketallocationsaresubject to therule-of-reasontest. Concerted Action

﻿Sectionone of theShermanActprohibitsconcertedaction,whichrequiresmorethan a unilateralact by a person or businessalone.TheSupremeCourthasstatedthat an organizationmaydeal or refuse to dealwithwhomever it wants, as long as thatorganization is actingindependently.﻿But if a manufacturerandcertainretailersagreethat a manufacturerwillonlyprovideproducts to thoseretailersandnot to others,thenthat is a concertedactionthatmayviolatetheShermanAct.A companyanditsemployeesareconsidered an individualentityforthepurposes of thisact.Likewise, a parentcompanyanditswhollyownedsubsidiariesareconsidered an individualentity.Evidence of a concertedactionmay be shown by an express or writtenagreement, or it may be inferredfromCircumstantial Evidence. Consciousparallelism(similarpatterns of conductamongcompetitors) is notsufficient in and of itself to imply a conspiracy.Thecourtshaveheldthatconspiracyrequires an additionalelementsuch as complexactionsthatwouldbenefiteachcompetitoronly if all of themacted in thesameway.Jointventures,whichare a form of businessassociationamongcompetitorsdesigned to further a businesspurpose,such as sharingcost or reducingredundancy,aregenerallyscrutinizedundertheRule of Reason.Butcourtsfirstlook at thereasonthattheJoint Venturewasestablished to determinewhetheritspurposewas to fixprices or engage in someotherunlawfulactivity.CongresspassedtheNationalCooperativeResearchAct of 1984(15U.S.C.A. §§ 4301-06) to permitandencouragecompetitors to engage in jointventuresthatpromoteresearchanddevelopment of newtechnologies.TheRule of Reasonwillapply to thosetypes of jointventures. Price Fixing

Theagreement to inhibitpricecompetition by raising,depressing,fixing, or stabilizingprices is themostseriousexample of a per se violationundertheShermanAct.Undertheact, it is immaterialwhetherthefixedpricesareset at a maximumprice, a minimumprice,theactualcost, or thefairmarketprice. It is alsoimmaterialunderthelawwhetherthefixedprice is reasonable.Allhorizontalandverticalprice-fixingagreementsareillegalperse.Horizontalprice-fixingagreementsincludeagreementsamongsellers to establishmaximum or minimumprices on certaingoods or services.Thiscanalsoincludecompetitors'changingtheirpricessimultaneously in somecircumstances.Alsosignificant is thefactthathorizontalprice-fixingagreementsmay be direct or indirectandstill be illegal.Thus, a promotion or discountthat is tiedclosely to pricecannot be raised,depressed,fixed, or stabilized,without a ShermanActviolation.Verticalprice-fixingagreementsincludesituationswhere a wholesalermandatestheminimum or maximumprice at whichretailersmaysellcertainproducts. Market Allocations

Marketallocationsaresituationswherecompetitorsagree to notcompetewitheachother in specificmarkets, by dividing up geographicareas,types of products, or types of customers.Marketallocationsareanotherform of pricefixing.Allhorizontalmarketallocationsareillegalperse. If thereareonlytwocomputermanufacturers in thecountryandtheyenterinto a marketallocationagreementwherebymanufacturer A willonlysell to retailerseast of theMississippiandmanufacturer B willonlysell to retailerswest of theMississippi,theyhavecreatedmonopoliesforthemselves, a violation of theShermanAct.Likewise, it is an illegalagreementthatmanufacturer A willonlysell to retailers C and D andmanufacturer B willonlysell to retailers E and F.Territorialandcustomerverticalmarketallocationsarenotper se illegalbutarejudged by theRule of Reason. In 1985,theJusticeDepartmentannouncedthat it wouldnotchallengeanyrestraints by a companythathaslessthan 10 percent of therelevantmarket or whoseverticalpriceindex, a measure of therelevantmarketshare,indicatesthatcollusionandexclusionarenotpossibleforthatcompany in thatmarket. Boycotts

A boycott, or a concertedrefusal to deal,occurswhentwo or morecompaniesagreenot to dealwith a thirdparty.Theseagreementsmay be clearlyanticompetitiveandmayviolatetheShermanActbecausetheycanresult in theelimination of competition or thereduction in thenumber of participantsenteringthemarket to competewithexistingparticipants.Boycottsthatarecreated by groupswithmarketpowerandthataredesigned to eliminate a competitor or to forcethatcompetitor to agree to a groupstandardareper se illegal.Boycottsthataremorecooperative in nature,designed to increaseeconomicefficiency or makemarketsmorecompetitive,aresubject to theRule of Reason.Generally,mostcourtshavefoundthathorizontalboycotts,butnotverticalboycotts,areper se illegal. Tying Arrangements

When a sellerconditionsthesale of oneproduct on thepurchase of anotherproduct,thesellerhasset up a Tying Arrangement, whichcallsforcloselegalscrutiny.Thissituationgenerallyoccurswithrelatedproducts,such as a printerandpaper. In thatexample,theselleronlysells a certainprinter(thetyingproduct) to consumers if theyagree to buyalltheirprinterpaper(thetiedproduct)fromthatseller.Tyingarrangementsarecloselyscrutinizedbecausetheyexploitmarketpower in oneproduct to expandmarketpower in anotherproduct.Theresult of tyingarrangements is to reducethechoicesforthebuyerandexcludecompetitors.Sucharrangementsareper se illegal if thesellerhasconsiderableeconomicpower in thetyingproductandaffects a substantialamount of interstatecommerce in thetiedproduct. If thesellerdoesnothaveeconomicpower in thetyingproductmarket,thetyingarrangement is judged by theRule of Reason. A seller is considered to haveeconomicpower if it occupies a dominantposition in themarket,itsproduct is advantagedoverothercompetingproducts as a result of thetying, or a substantialnumber of consumershasacceptedthetyingarrangement(evidencingtheseller'seconomicpower in themarket). Monopolies Sectiontwo of theShermanActprohibitsmonopolies,attempts to monopolize, or conspiracies to monopolize. A monopoly is a form of marketstructurewhereonlyone or veryfewcompaniesdominatethetotalsales of a particularproduct or service.Economictheoriesshowthatmonopolistswillusetheirpower to restrictproduction of goodsandraiseprices.Thepublicsuffersunder a monopolisticmarketbecause it doesnothavethequantity of goods or thelowpricesthat a competitivemarketcouldoffer.Althoughthelanguage of theShermanActforbidsallmonopolies,thecourtshaveheldthattheactonlyapplies to thosemonopoliesattainedthroughabused or unfairpower.Monopoliesthathavebeencreatedthroughefficient,competitivebehaviorarenotillegalundertheShermanAct, as long as honestmethodshavebeenemployed. In determiningwhether a particularsituationthatinvolvesmorethanonecompany is a monopoly,thecourtsmustdeterminewhetherthepresence of monopolypowerexists in themarket.Monopolypower is defined as theability to controlprice or to excludecompetitorsfromthemarketplace.Thecourtslook to severalcriteria in determiningmarketpowerbutprimarilyfocus on marketshare(thecompany'sfractionalshare of thetotalrelevantproductandgeographicmarket). A marketsharegreaterthan 75 percentindicatesmonopolypower, a sharelessthan 50 percentdoesnot,andsharesbetween 50 and 75 percentareinconclusive in and of themselves. In focusing on marketshares,courtswillincludenotonlyproductsthatareexactlythesamebutalsothosethatmay be substitutedforthecompany'sproductbased on price,quality,andadaptabilityforotherpurposes.Forexample, an oat-based,round-shapedbreakfastcerealmay be considered a substitutableproductfor a rice-based,square-shapedbreakfastcereal, or possiblyeven a granolabreakfastbar. In addition to theproductmarket,thegeographicmarket is alsoimportant in determiningmarketshare.Therelevantgeographicmarket,theterritory in whichthefirmsellsitsproducts or services,may be national,regional, or local in nature.Geographicmarketmay be limited by transportationcosts,thetypes of product or service,andthelocation of competitors.Oncesufficientmonopolypowerhasbeenproved,theShermanActrequires a showingthatthecompany in questionengaged in unfairconduct.Thecourtshavedifferingopinions as to whatconstitutesunfairconduct.Somecourtsrequirethecompany to provethat it acquireditsmonopolypowerpassively or thatthepowerwasthrustuponthem.Othercourtsconsider it an unfairpower if themonopolypower is used in conjunctionwithconductdesigned to excludecompetitors.Stillothercourtsfind an unfairpower if themonopolypower is combinedwithsomepredatorypractice,such as pricingbelowmarginalcosts.Attempts to Monopolize

Sectiontwo of theShermanActalsoprohibitsattempts to monopolize. As withotherbehaviorprohibitedundertheShermanAct,courtshavehad a difficulttimedeveloping a standardthatdistinguishesunlawfulattempts to monopolizefromnormalcompetitivebehavior.Thestandardthatthecourtshavedevelopedrequires a showing of Specific Intent to monopolizealongwith a dangerousprobability of success.However,thecourtshave no uniformdefinitionforthetermsintent or success.Casessuggestthatthemoremarketpower a companyhasacquired,thelessflagrantitsattempt to monopolizemustbe.Conspiracies to Monopolize

Conspiracies to monopolizeareunlawfulundersectiontwo of theShermanAct.Thisoffense is rarelychargedalone,because a conspiracy to monopolize is also a combination in restraint of trade,whichviolatessectionone of theShermanAct. In accordancewithtraditionalconspiracylaw,conspirators to monopolizeareliablefortheacts of eachco-conspirator,eventheirsuperiorsandemployees, if theyareaware of andparticipate in theoverallmission of theconspiracy.Conspiratorswhojoin in theconspiracyafter it hasalreadystartedareliableforeveryactduringthecourse of theconspiracy,eventhoseeventsthatoccurredbeforetheyjoined.